Lewis v. State

Court of Special Appeals of Maryland

July 28, 2016

GRANT AGBARA LEWISv.STATE OF MARYLAND

Wright, Graeff, Eyler, James R. (Retired, Specially
Assigned), JJ.

OPINION

Eyler,
James R., J.

Heidi
Bernadzikowski was murdered on April 20, 2000. In 2012,
Alexander Charles Bennett was charged with the murder. The
State identified Grant Agbara Lewis, appellant, a resident of
Colorado, as a material witness. Pursuant to the Uniform Act
to Secure Attendance of Witnesses from Without a State in
Criminal Proceedings, Md. Code (1973, 2013 Repl. Vol.),
§§ 9-301 - 307 of the Courts and Judicial
Proceedings Article (the "Uniform Act"), the State
obtained an order and summons from a Colorado court requiring
appellant to appear and testify at Mr. Bennett's trial.

When
appellant appeared in court on the day set for trial, Mr.
Bennett pleaded guilty. In his proffer of facts, Mr. Bennett
implicated appellant as an accomplice. Appellant was
arrested. In the Circuit Court for Baltimore County, he was
charged with murder and conspiracy. A jury convicted him, and
the court sentenced him to life imprisonment plus five years.

The
Uniform Act, discussed more fully below, provides immunity
from arrest and service of process for witnesses who come
into the State in obedience to a summons. On appeal,
appellant argues that the State violated the Uniform Act.
Recognizing that he did not raise the issue in circuit court,
he contends that, based on the violation, the circuit court
lacked subject matter and personal jurisdiction and that
jurisdictional issues can be raised at any time.

We hold
that the circuit court had both subject matter and personal
jurisdiction. Conceptually, therefore, the question becomes
whether the court erred in exercising its jurisdiction. The
alleged error is one of law and subject to waiver. Thus, we
need not reach the merits, i.e., whether the State
violated the Uniform Act and, if so, the effect of the
violation and appropriate remedy.

OVERVIEW

On May
7, 2012, an indictment was filed in circuit court against Mr.
Bennett, charging him with the murder of Ms. Bernadzikowski.
See State v. Bennett, No. 03K12002639, Baltimore
County Circuit Court.[1] As detailed below, initially the State
identified appellant, a resident of Denver, Colorado, as a
material witness in Mr. Bennett's case. The prosecutor
took steps to compel appellant to appear and testify at Mr.
Bennett's trial. Pertinent to the issue raised on appeal,
we have reviewed, and the State accepts, the following from
appellant's recitation of facts:[2]

The steps that the State took to secure Appellant's
presence are consistent with the typical steps taken to
secure the presence of an out-of-state witness. First, the
State's Attorney's Office obtained from Baltimore
County Circuit Court Judge Kathleen Gallogly Cox a
Certificate for Attendance of Witness From Colorado State
("Certificate"), certifying that Appellant was a
material and necessary witness in Bennett's prosecution,
and the trial dates when Appellant's presence would be
required.[3] App. A. The Certificate was then provided
to the District Attorney's Office for the Second Judicial
District of Colorado. Id. As a result of the
Certificate, In Re: Request for Summons Under Uniform Act
to Secure Witness From Outside the State pursuant to §
16-9-202, Regarding Witness, Case No. 2014CV30367 (Colo.
Dist. Ct. 2014), was docketed in the Colorado court. App. A.
On January 28, 2014, the District Attorney's Office filed
the required motion for a hearing, which gave Appellant the
opportunity to be heard as to whether he was a material and
necessary witness in Bennett's case. Id. On
January 29, 2014, Chief Judge Michael A. Martinez of the
Colorado court, citing the Certificate issued by Judge Cox,
issued a summons ordering Appellant to appear as a
State's witness in Bennett's trial. App. B.

The Colorado order and summons included the following
language:

4) That the laws of the state in which the prosecution is
pending, and of any other state through which the witness may
be required to pass by ordinary course of travel, will give
to the witness protection from arrest and service of civil
and criminal process in connection with matters which arose
before entering into that state under this summons; . . .

Appellant's recitation of facts included the following:

Judge Martinez's summons and accompanying order was to
become effective upon either the signing and filing of an
Acceptance of Service and Waiver of Hearing or the issuance
of a summons after a hearing. Id. The summons and
order in Appellant's case became effective on February 7,
2014, after Appellant signed the Acceptance of Service and
Waiver of Hearing and it was filed with the court. App. D.

Appellant
arrived in Maryland some time prior to March 18, 2014, the
first day of Mr. Bennett's trial. As noted, Mr. Bennett
pleaded guilty to first degree murder. He was sentenced to
life imprisonment with all but thirty years suspended. As
part of the plea agreement, Mr. Bennett agreed to proffer the
details of Ms. Bernadzikowski's murder and to testify in
any further proceedings. After Mr. Bennett implicated
appellant as an accomplice, the State filed an indictment in
circuit court, charging appellant with first degree murder
and conspiracy to commit first degree murder.

BACKGROUND

Although
not necessary for resolution of this appeal, as general
background information, we shall summarize the evidence at
appellant's trial. On the evening of April 20, 2000,
Baltimore County police responded to a 911 call from 2008
Codd Avenue in Dundalk, Maryland. They found Steven Cooke
holding the dead body of his girlfriend, Ms. Bernadzikowski.
Police learned that Mr. Cooke had obtained a $700, 000
insurance policy on Ms. Bernadzikowski's life
approximately two months before her death. Mr. Cooke was the
primary beneficiary on the policy. Several witnesses
testified that Ms. Bernadzikowski had planned to leave Mr.
Cooke.

Much of
the State's evidence at trial came from Mr. Bennett. Mr.
Bennett set up an online advertisement for "professional
and discreet cleaning services." Mr. Cooke contacted him
via email. Mr. Bennett, appellant, and Mr. Cooke planned a
murder-for-hire whereby Mr. Bennett and appellant agreed to
murder Ms. Bernadzikowski, in exchange for $60, 000 from the
proceeds of the life insurance policy. Appellant and Mr.
Bennett discussed ways to kill Ms. Bernadzikowski without it
being detected, including breaking her neck to make her death
look like an accident.

After
reaching agreement with Mr. Cooke, appellant bought Mr.
Bennett a plane ticket from Colorado to Baltimore, and
Natalie Ott, a friend, drove both of them to the airport the
day Mr. Bennett left. Appellant gave Mr. Bennett a map to the
home where Mr. Cooke and Ms. Bernadzikowski were living.
After he arrived in the Baltimore area in March 2000, Mr.
Bennett began watching the victim, communicating his
observations to appellant who was in Colorado.[4] Eventually,
appellant put Mr. Bennett in contact with Mr. Cooke. Messrs.
Bennett and Cooke met twice: once at the residence of Mr.
Cooke and Ms. Bernadzikowski, and another time at a bus stop.
At the residence, Mr. Cooke showed Mr. Bennett around the
house and made clear that he wanted the murder to look like
an accident for purposes of the potential insurance claim.
Mr. Bennett told Mr. Cooke that he was going to contact
appellant to coordinate completion of the crime. Later, at
the bus stop, Mr. Bennett told Mr. Cooke that his "boss,
" referring to appellant, was getting "angry"
and wanted to move forward with the crime so that they could
get paid.

On the
day planned for the murder, Mr. Bennett called appellant.
Appellant told Mr. Bennett that Mr. Cooke was going to drop
Ms. Bernadzikowski off at their residence in twenty minutes.
Mr. Bennett was to go to the residence, where a key to the
door would be waiting, and then call appellant and inform him
whether the crime had occurred as planned.

Mr.
Bennett went to the residence, found the key, gained entry,
and waited by the front door. He watched through a window as
Mr. Cooke and Ms. Bernadzikowski arrived. While Mr. Cooke
remained behind, Ms. Bernadzikowski exited the vehicle and
entered the residence. At that point, Mr. Bennett grabbed her
from behind, put his hand over her mouth, and attempted to
break her neck. When that did not work, he wrapped his hands
around her throat and choked her until she was unconscious.
He put her down and went to find a knife. Returning with a
knife, and being unsure whether she was dead, Mr. Bennett cut
her throat. During the struggle, Ms. Bernadzikowski scratched
Mr. Bennett's face and lip.

After
the murder, Mr. Bennett went through the house, trying to
create a scene "just to confuse the police." This
included writing the number "1" on the wall in
lipstick. Mr. Bennett stayed in the house for about thirty
minutes after the murder. When asked why, he replied that
appellant suggested that, if he did not hear the police after
thirty minutes, he would be okay.

After
he left the residence, Mr. Bennett disposed of the knife and
the key, and then called appellant. Mr. Bennett told
appellant the crime did not go entirely as planned, but that
it was done. Appellant informed Mr. Bennett that he was
monitoring police activity in the area and that "the
coasts were clear." Appellant tried, unsuccessfully, to
arrange accommodations for Mr. Bennett in Baltimore using a
fake credit card. After sleeping in an alley, Mr. Bennett
again called appellant and asked him to call Mr.
Bennett's sister to help Mr. Bennett return to Colorado.
Appellant later contacted Mr. Bennett again and told him it
was okay to speak to his sister. Mr. Bennett returned to
Colorado. Mr. Bennett and appellant were never paid any of
the insurance proceeds.

Other
witnesses corroborated portions of Mr. Bennett's
testimony. Ms. Ott knew both the appellant and Mr. Bennett.
In the spring of 2000, she drove both men to the airport, and
was told that Mr. Bennett was going to Baltimore to
"make a lot of money." Rebecca Love, the mother of
two of appellant's children, testified that appellant
told her that he sent Mr. Bennett to kill a woman who lived
out-of-state because she owed him money. Ms. Love knew that
Mr. Bennett and appellant were "extremely close friends,
" and that they "[d]id everything together."

In
2000, DNA testing of samples taken from under the
victim's fingernails did not result in an identification
of the murderer. In 2011, DNA testing of additional samples,
with improved technology, resulted in the identification of
Mr. Bennett. Detective Gary Childs testified that, in
approximately January 2012, after Mr. Bennett's DNA was
found under the victim's fingernails, he conducted a
search with the Maryland State Police and discovered the
record of Mr. Bennett's stop by the MTA Police in March
2000. The investigators then decided to interview Mr. Bennett
in Colorado.

In
January 2012, during the course of their interview with Mr.
Bennett, appellant's name surfaced as a possible alibi
witness. The police then interviewed appellant, also in
Colorado, solely as a witness in connection with Mr.
Bennett's case. Following these interviews, the
State's Attorney charged Mr. Bennett with the murder and
took steps to compel appellant to come to Baltimore County to
testify as a material witness in the case against Bennett.

As part
of his plea agreement with the State, Mr. Bennett agreed to
plead guilty and to testify truthfully about his role in the
murder of Ms. Bernadzikowski. Mr. Bennett provided details of
appellant's role in the murder. Based on this new
information, police determined that appellant was not simply
a witness, but a suspect. Detective Childs then reinterviewed
appellant, explaining:

On all the previous interviews Mr. Lewis was viewed as a
potential alibi witness for the Defendant and he was giving
us pieces of the information regarding Mr. Bennett. After the
18th proffer with his attorney present, there were some
questions I needed to ask Mr. Lewis that tentatively would
put him as a defendant in this case. So I felt that even
though he flew here voluntarily, possibility of him not
leaving voluntarily and being arrested was pretty good. So
because it would be viewed that he may be in custody, in my
custody and not allowed to leave, in a custodial
interrogation you have to advise the person that you are
talking to of their Miranda rights against self-incrimination
and his right to an attorney. So ...

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